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WTO Dispute Settlement: a Check-up

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Edited By Jacques H.J. Bourgeois, Marco Bronckers and Reinhard Quick

The dispute settlement system of the World Trade Organisation has been referred to as the jewel in the crown of the WTO. Reviewing more than
twenty years of the system’s operation, this volume takes stock by providing an in-depth analysis of key issues that have emerged. The book collects and updates papers by a group of eminent experts that were presented at an international conference at the College of Europe in Bruges. The fundamental question of whether the system is in good shape or whether changes are necessary is addressed through five themes.

Firstly, the book looks at the interpretive function of the dispute settlement system and questions whether rulings are capable of "gap-filling". Secondly, under the heading ‘Jurisdiction and Applicable Law’ we cover the thorny issue of how public international law can be integrated into the dispute resolution system. Thirdly, regarding problems associated with implementation, we ask whether the system ensures satisfactory compliance with its rules and rulings or whether financial remedies need to be added. Furthermore, through themes four and five we compare the WTO dispute settlement system with the dispute settlement system contained in the Free Trade Agreements, as well as the investor-state arbitration system (ISDS). We investigate how these two different systems can influence each other and learn from one another. With respect to the reform debate on ISDS, for example, the question was raised whether the WTO dispute settlement system could be considered as a model for such a reform.

This review comes to the conclusion that the system is functioning, if not perfectly, at least reasonably well. Where problems are identified, solutions are suggested to improve the system.

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A Comment (Mary Footer)

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A Comment

Mary FOOTER1

I would first of all like to thank Jacques Bourgeois and the College of Europe for hosting us, and Jacques in particular for organizing this conference. It is both a privilege and a pleasure for me to be here today and to comment on Lorand Bartels’ paper. My first two remarks concern applicable law in relation to some institutional aspects of the WTO and the Dispute Settlement Understanding (DSU).

Lorand mentioned the question as to whether the Dispute Settlement Body (DSB) is able to make legal determinations concerning decisions adopted under Article 6.1 DSU. Whereas some WTO Members think this is a problem while the US does not it just goes to show the kind of institutional schizophrenia that exists in the organization.2 We talked in the first session about the disparity that exists between the judicial and the political branches of the WTO. There is a real institutional problem here that has not got better over time. Nearly twenty years after it was established the DSB (or at least some of its Members) does not feel capable of taking a decision concerning its power to interpret the DSU. Of course, the DSB, as a WTO organ, has the explicit power to interpret the Agreement for which it has responsibility.3 Thus, I see no reason why this should not extend to interpreting Article 6.1 DSU.

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